Wednesday, September 20, 2006

My interest in the judicial process has a practical edge to it. While I often find myself attempting to cobble together a theoretical understanding of different aspects of what judges do (or, more likely, are supposed to do), I typically do so with an eye to using that understanding as a measuring stick by which to assess the efficacy of existing institutional arrangements. Same thing with more descriptive efforts. It’s interesting and valuable in its own right to know, say, the extent to which the political party of the appointing president is useful as a predictor of judges’ decisions. But for me the more interesting questions are those that come after. Assuming that we don’t think that politics should matter in that way, what can we do about it? Are there ways we can tweak the process of judging so as to reduce the influence of these sorts of factors?

For that sort of inquiry, it seems to me, the more complete an account one has of judicial behavior, the better. Political affiliation may provide a relatively powerful descriptive account of judicial behavior, in that the correlation between the two is strong. But we all know that correlation isn’t the same as causation. And even if one’s political preferences do bear a causal relationship to one’s behavior as a judge, they are undoubtedly not the only factor that does so. As a result, reform efforts undertaken in light of such findings are likely not only to be incomplete, but may also create undesirable conditions with respect to other, unaddressed causal factors and thereby skew results in unanticipated ways.

From my perspective, then, a book like Lawrence Baum’s Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press 2006) is a welcome thing indeed. Baum questions the assumption, shared by dominant models of judicial behavior, that judges are “single-minded seekers of good legal policy, whether that means good policy or some combination of good law and good policy.” (14) In reality, he suggests, judges don’t stand to gain all that much simply from pursuing the policies they happen to favor because they are unlikely to benefit directly as a result. At the same time, other considerations might exert a more powerful and direct pull, such as the desire for advancement, pleasant relations with colleagues, leisure time, and the like.

Using the tools of social psychology, Baum focuses on judges’ relationships to their audiences, most of which are external to the courts on which they serve. Among other things, he suggests that here we might find the source of judges’ motivation to pursue policy goals. The judge may not pursue a certain conception of good policy for its own sake, but because doing so will please audiences important to the judge, including not only her colleagues, but also (and importantly) her social and professional peers, policy groups, and the news media. These groups include people a judge is likely to want to please for no reason more complicated than that judges are humans, and humans want to be liked and respected.

All of this of course makes for a more complex (some might say muddier) depiction of judicial behavior, and one that is consequently more difficult to verify empirically. But as with most things in law, the process of judging as currently constituted is based on understandings of human behavior with considerably shakier foundations than those underlying Baum’s thesis. He has made an important contribution to the study of judicial behavior, and one of the sort that lends substantial aid to efforts to assess the appropriateness of the process in which that behavior takes place.

Subscribe to Ratio Juris

Search FindLaw's database of Supreme Court decisions since 1893 (U.S. Reports, volumes 150-present). Browsable by U.S. Reports volume number and by year. Searchable by citation, case title, and full text.